and even against the will of the original debtor (1), or by a delegatio, i.e., a mandatum (commission) given by the original to the new debtor to pay the debt (B. 3, t. 26, § 2). ‡ 2. By the substitution of a new creditor for the old one, which took place when the original creditor assigned (delegare) the debtor, who became liable to a third party. 3. Without the interference of any third party, viz., by a stipulatio concluded between the same creditor and debtor. Such stipulatio worked a novatio only where it contained something new (aliquid novi); e.g., the addition or the omission of a condition (2), or of a surety (3), or of a fixed period if nothing was added, the original obligation was merely confirmed.

But there was another mode of producing a novatio besides stipulatio: namely, by nominibus transcriptitis (B. 3, t. 21), and by the litis contestatio, at least when the proceeding was in legitimo judicio (B. 4, t. 13); for after the formula was settled, and the direction to award condemnatio delivered to the judex by the Prætor, the demandant could not sue for the performance of the obligatio (dare oportere), but only for condemnatio, which, observe, was always a sum of money (condemnari oportere, Gai. 3, 180). But the novatio produced by the litis contestatio differed from that produced by agreement, in this: that the pledges, hypothecæ and other incidents to the original obligation, continued incident to the new obligation produced by the litis contestatio.

§ 1. (3.) Acceptilatio was a stipulatio by which, to a question of the debtor, the creditor answered that he considered himself paid. Justinian gives the formula: Quod ego tibi promisi habesne acceptum? Habeo. This fictitious payment (imaginaria solutio) had the same effect as an actual payment, and, like that, it might be for the whole or even a part of the debt when made with the creditor's consent; but it could not be for a fixed time, or subject to a condition.

§ 2. But this method of dissolving an obligation did not apply to all. It applied only to obligations made verbis. To meet the case of other obligations, a method was introduced by Aquilius Gallus (Prætor, B.C. 65), which consisted in substituting for the obligation to be dissolved a verbal obligation, and then extinquishing the latter by an acceptilatio. The following was the form of the Aquilian stipulatio, according to the

(1) When the original debtor did not consent, the new debtor was called expromissor.

(2) If the new engagement was subject to a condition, the novatio was suspended till the condition was fulfilled.

(3) Si fidejussor adjiciatur (§ 3), i.e., according to some, not if a surety be added in fact; for that could be done at any time without changing the contract; but if

In

a contract be made with the additional clause that the debtor shall provide a surety. Sponsor is the word in the corresponding passage in Gaius, 3, 177. Justinian's time sponsores were obsolete; but by the old law they were required to be parties to the same contract as the principal, so that, when sponsores were added, a new contract was produced, and therefore a novatio.

text:: "Whatever, for any cause (1), you are or shall be bound (2) to give or to do for me, either now or at a future day (3), everything for which I have or shall have against you, actions personal (actio) or real (petitio), or right to have recourse to the extraordinaria judicia (persecutio) of the magistrate, everything of mine which you have, hold, or possess (4), or which you only do not possess through some wilful neglect of your own (5), whatever shall be the value of all these things,"so much A. Agerius stipulated should be given him in money, and N. Negidius engaged to give it: on the other hand, N. Negidius put to Agerius the question, "All that I have promised you to-day by the Aquilian stipulation, do you acknowledge it as received?" and A. Agerips answered that he did.

§ 4. (4.) Contraria voluntas is the agreement of the parties to dissolve an obligation which they have contracted. It dissolves none but obligations consensu; the rule of the Civil Law being, that an engagement is dissolved in the same way as it has been created. Moreover, obligations are dissolved by mutual consent (contraria voluntas), only when things are still in their original state (re nondum secuta): for if, e.g., the thing sold has been delivered, an agreement to restore it would create a new contract, but would not extinguish the original one.

(5.) Confusio occurred when the character of creditor and debtor united in the same person; as, e.g., when a debtor became hæres of the creditor, or vice versâ.

(6.) Compensatio or set-off occurred where one had a debtor and creditor account with another, and set off the items on one side against those on the other. By the old, law set-off did not extinguish mutual debts ipso jure, except in actions bona fidei: in contracts stricti juris it raised only an exceptio.

(7.) Oblatio followed by consignatio dissolved an obligation when the debtor deposited, by permission of the judex, the whole debt after an ineffectual tender thereof to the creditor at a fitting time and place (C. 4, 32, 19; C. 8, 43, 9).

(1) Causa, generic expression. (2) Present and future.

(3) Modes of a contract.

(4) Habes referring to vindicatio; tenes to physical detention; possides to civil possession.

(5) Dolove malo fecisti quominus possideas, referring to the liability raised by the fraudulent destruction of a thing, in order to prevent the owner reclaiming it. Thus it appears the formula applied to every possible case.

BOOK IV.

TITLE I.—OF OBLIGATIONS RAISED BY A WRONG (DELICTUM).

A delictum is an injurious and unlawful act, to which the law has attached a peculiar action (1).

Delicta are divided into public or private. They are public, where the wrong-doer may be prosecuted by any citizen, the result being a judicium publicum (t. 18, post): private, when the wrong-doer may be prosecuted by certain parties only, in whose favour the wrong raises an obligatio and an action for money damages.

Pr. But obligations raised by wrongs are not divided like those raised by contracts.

Delicta are all real, i.e., raised (ex re) by some wrongful act (maleficium) constituting a delictum.-An intention to commit a wrong, whether proved by words or by writing, cannot raise an obligation or an action.

Pr. Private wrongs are, 1. Theft (furtum); 2. Theft with violence (rapina); 3. Damage committed wrongfully (damni injuria); and 4. Injuria. Justinian devotes this and the three following titles to the discussion of them.

Theft (furtum) (2).

§ 1. Theft (furtum) is the fraudulent (3) dealing or handling (contrectalio) (4) either of the thing itself, or of the use or possession of the thing, for the purpose of deriving thereby a benefit (lucri faciendi gratia) (5).

(1) It has been said that a delictum, as distinct from a quasi delictum, implies fraud, or the intention to injure. But we shall find that damage, caused by negli gence, may amount to a delictum, though there be no formal intention to injure (t. 3, post), and that sometimes the obligatio and right of action arise not ex delicto, but quasi ex delicto, even in cases of fraud (t. 5). The reason is, because in Roman law it is the same with delicta (wrongs) as with contracts: no obligation can arise from a wrong (ex delicto) unless the injury has been specifically declared a wrong by law, and unless a particular action has been attached to it.

(2) § 2. Furtum or furvum, black, from being done secretly; or à fraus ferre, to carry away; or from pop, a Thief, φέρειν.

(3) Theft, therefore, presumes intention: so that a person under age cannot be prosecuted for theft unless he is very near full age (proximus pubertati, § 18), because until then he is not deemed to have discretion (B. 3, t. 19).

(4) Theft implies a removal, and therefore moveables alone can be stolen.

(5) He who takes a thing not to benefit himself, but to injure another, or to damage it, does not commit a theft, but damage (damnum) or injury (injuria).

§ 6. To constitute theft, then, it is not required that one should take a thing belonging to another and appropriate it. It is enough if a man misapply a thing without the consent of its proprietor, in order to derive some advantage thereby. Thus, a depositee (depositarius) or a creditor holding a pledge, who makes use of such deposit or pledge, is guilty of a theft, viz., of the use. So it is with the borrower of a res commodata, who has received a thing for one purpose and uses it for another; e.g., if a man borrows plate, on pretence of inviting his friends to supper, and carries it off; or if a man borrows a horse as for a ride, and rides him further, or takes him to the wars. As to the borrower of the res commodata, however, it is no theft, unless he misapplies it knowingly against the will of the proprietor: thus it is no theft if a man thinks himself sure of the proprietor's sanction, because the essence of the thing is wanting, viz., an intention to steal (affectu furandi, § 7).

§ 8. Even though a man thinks he is acting against the proprietor's will, it is not theft if the proprietor consent in fact. Hence this question: Titius engages the slave of Mævius to rob his master, and to bring the stolen things to him (Titius). The slave tells Mævius: Mævius, in order to take Titius in the very act, allows his slave to carry the things to Titius: is Titius liable to the action (judicium) for theft (furti), or to the action for corrupting a slave (servi corrupti), or to neither? Clearly he is not liable to an action for corruption, because the wrong the corruption-has not been committed. Some held him. liable to an action of theft, others held him not, because the taking was not against the will of the master (Gaius, 3, § 198). But Justinian held him liable to an action both for theft and for corrupting a slave: he punished the attempt to commit the wrong, as if the wrong had been committed (tanquam reipsa fuisset corruptus, § 8).

§ 10. A man may commit theft by misappropriating his own property thus, where another is in the possession or the use thereof, a debtor may steal his property pledged with his creditor.

§ 9. Again, a freeman may be stolen: it is theft fraudulently to take a freeman, being alieni juris: for the right of paternal authority makes filii-familias in some respects the property of their father.

§ 3. There are two kinds of theft, furtum manifestum and furtum necmanifestum. As to those recognised by the old law-furtum conceptum, oblatum, prohibitum, and non exhibitum-they are not so much peculiar kinds of theft as accidental circumstances supervening upon theft, and raising particular actions.

§ 3. Notwithstanding a difference of opinion among the old jurists, it was ultimately settled that if a thief was caught in the act, or in the place where the theft was committed, or before he had reached the spot

to which he intended to convey the stolen property, the theft was manifestum under any other circumstances nec-manifestum.

§ 4. The furtum conceptum (1) of the old law denoted that the thing stolen had been found in the house of a receiver. But there was a distinction between furtum simply conceptum and lance licioque conceptum. When the thing stolen was accidentally found in possession of the receiver, or during a friendly search in his house, made by consent, it was furtum conceptum. This raised the action furti concepti, by which a condemnatio equal to thrice the value of the thing stolen was awarded against the receiver. But it was furtum lance licioque conceptum when the search was not friendly, but proceedings were had according to the solemn form of the law (legis actio). Now it was a principle of the old procedure, that the demandant should himself perform all acts of legal execution (2). A person then, making a legal search, was required to enter the house of the defendant with nothing on (nudus) but a linen girdle (linteo cinctus), to show that the thing stolen was not about him, and holding a dish (lancem habens, Gaius 3, 192), upon which the thing stolen, if found, was to be carried. If found, the receiver was punished as if he had been convicted of furtum manifestum.-Now, by the Twelve Tables, one guilty of furtum manifestum, if a freeman, was beaten with rods, and then assigned by law (addictus) to the person he had robbed ; if a slave, he was cast headlong from the Tarpeian rock.-But the formal search, and the actio furti lance licioque concepti annexed to it were abolished, with the other legis actiones, by the lex Ebutia. Thenceforth the action furti concepti alone remained, for which the penalty was the threefold value, and a search with witnesses (§ 4) was substituted for that with dish and girdle.

§ 4. By the Twelve Tables, the furtum was oblatum when the possessor of stolen property (furtiva), anticipating a search for it, and wishing to make a third party responsible, brought and offered it to him, so that it might be found in this third party's house rather than in his own. This person in whose house the property was seized was entitled, as against him who had brought it, to the actio furti oblati, and to recover condemnatio amounting to the threefold value.

§ 4. Furtum prohibitum and furtum non exhibitum refer to two actions introduced by the Prætors: the first (furti prohibiti) was for the fourfold value (Gaius, 3, 192) against him who resisted a lawful search; the second (furti non exhibiti), also probably for the fourfold value, lay

(1) Furtum sometimes denoted the thing stolen, as here.

(2) Originally the Romans got justice for themselves; next, the law regulated the acts of private execution; next, sym

bols were used; next, the symbols became obsolete; lastly, public authority took upon itself to carry all executions into effect.

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